ASA Analysis of the Accountable Care Organization Final Rule

ASA members and staff have been analyzing the 696-page Accountable Care Organization (ACO) final rule. While the Centers for Medicare & Medicaid Services (CMS) adopted many of the proposed changes ASA submitted as part of a comment letter on the proposed rule, ACOs remain directed predominantly toward primary care. As a result, anesthesiologists and specialists, in general, will not have much of a role in ACOs. CMS acknowledged comments urging alternative payment models citing, among others, the “surgical homes payment models” submitted by ASA, but CMS stated that these models are untested and should be tested by the Center for Medicare and Medicaid Innovation (CMMI) before they are considered for inclusion in the Shared Savings Program. ASA will continue to promote the surgical home model to policymakers.

As part of the final rule, CMS adopted many of the recommendations submitted by ASA. Below are some of the key items CMS changed as a result of lobbying from ASA and other groups.

Application Process – ASA expressed concerns that most organizations would not be able to meet the originally proposed January 1, 2012 start date. CMS delayed the first start date until April 1, 2012 and provided for a second start date of July 1, 2012.

Beneficiary Assignment - ASA believed that the proposed retrospective attribution of beneficiaries would be a disadvantage to ACOs as they will be unaware of which patients they are caring for, and consequently, what strategies they could be using for patient-centered care improvement. CMS will have preliminary prospective assignment with final retrospective reconciliation. Under this model, CMS will create a list of beneficiaries likely to receive care from the ACO based on primary care utilization during the most recent periods for which adequate data are available, and provide a copy of this list to the ACO. In addition, CMS modified the methodology for beneficiary assignment. Under the final rule, if a beneficiary cannot be attributed to a primary care physician, he or she will be assigned based on primary care services provided by a specialist or another primary care provider (i.e. RN, PA, CNS).

Marketing Guidelines – ASA opposed CMS requiring advance approval of ACO marketing materials because CMS may not have sufficient resources to review materials in a timely fashion. CMS changed the rule to allow for marketing materials and activities to be used or conducted five business days following their submission to CMS as long as the ACO certifies compliance with applicable marketing requirements. CMS is also going to make available some template language.

Number of Quality Measures – ASA urged CMS to reduce the overall number of quality measures. CMS reduced the number of measures from 65-33.

Payment

Downside risk – ASA feared that including downside risk in the one-sided model would diminish interest in the ACO program. CMS revised the one-sided model to be a shared savings only model with no downside risk.

Eliminate withholding – ASA expressed concern with the proposal that would force ACOs to withhold 25 percent of any shared savings to offset losses and ACOs would forfeit the 25 percent withhold if they withdrew from the program. CMS eliminated both the 25 percent withholding requirement and the provision concerning forfeiture.

Increasing cap on shared savings – ASA expressed concern that the maximum cap on shared savings would limit the opportunity for ACOs to achieve maximum savings. CMS raised the payment limit from 7.5 to 10 percent of an ACO’s updated benchmark for ACOs under the one-sided model and from 10 to 15 percent under than two-sided model.

Excluding Indirect Medical Education (IME) Disproportionate Hospital Share (DSH) and Direct Graduate Medical Educate (DGME) - Under the proposed rule, ACOs were provided an economic incentive to discourage beneficiaries from receiving care in teaching hospitals even when that may be the optimal setting for the patient. This is because these hospitals receive direct graduate medical education (DGME), indirect medical education (IME), and disproportionate share hospital (DSH) payments which means that a Medicare admission to a teaching hospital will incur higher Medicare payments than an admission to a nonteaching hospital. CMS agreed to exclude IME and DSH payments from ACO benchmark and performance year expenditures. CMS also stated that DGME payments are made outside of payments of parts A and B claims, and thus, would not be included in an ACO’s benchmark and performance year expenditures.

Start-Up Costs - ASA recommended that CMS create an incentive in the form of a start-up grant to assist smaller practices in creating an ACO. The Center for Medicare and Medicaid Innovation (CMMI) released the Advanced Payment Model initiative for two types or rural and physician-owned organizations participating in the Shared Savings Program. This should assist the organizations with start-up costs.

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